Mark Walsh is a contributing writer to Education Week. He has covered legal issues in education for more than two decades. He writes about school-related cases in the U.S. Supreme Court and in lower courts.

Justices Weigh Public-Employee 'Petition' Rights

The U.S. Supreme Court has generally curtailed First Amendment protections in recent years for the speech of public employees, including teachers, particularly speech on matters of private concern or job-related communications.

A case argued before the justices on March 22 raised the question of whether another provision of the First Amendment—the petition clause—provides a different standard or stronger protection for public-employee workplace grievances.

The clause says Congress shall not abridge the right of the people "to petition the government for a redress of grievances." In an argument that ranged from the petition practices in England at the time the Magna Carta was adopted in 1215 to the recent battle in Wisconsin over public-employee collective bargaining, the question for the justices seemed to be whether the petiion clause covers every workplace grievance.

"We have said that [a] ... public employee's right to speech can be regulated, can be confined, can be restricted beyond what the state could do for a nonemployee," Justice Anthony M. Kennedy said during Borough of Duryea v. Guarnieri (Case No. 09-1476). "Are you saying that if the petition clause is involved, there is no right to restrict what the employer does?"

Eric Schnapper, a University of Washington law professor who is representing a small-town Pennsylvania police chief who sued his employer under the petition clause, said the government's interests would need to be balanced against the rights of employees.

Schnapper represents Charles J. Guarnieri, the police chief of Duryea, Pa., who clashed with the borough council and was dismissed. He won his job back in a grievance procedure, but the council then sought to impose directives on him affecting his pay and his working conditions. Guarnieri then sued under the petition clause, and a jury ruled that the borough council had retaliated against him for winning the earlier grievance.

The U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, largely upheld the trial court victory for the police chief. The appeals court rejected the view that petition-clause cases concerning only private matters, not matters of public concern, were not valid.

Underlying the case is the Supreme Court's jurisprudence on public-employee free speech, such as Pickering v. Board of Education, the 1968 case that held that a teacher could not be dismissed for speaking out publicly on a matter of public concern, and Connick v. Myers, a 1983 case that said a survey about working conditions circulated among employees in a district attorney's office was not protected because it was a matter of personal interest, not public concern.

The National School Boards Association filed a friend-of-the-court brief supporting the borough, and arguing that a decision for the police chief could "wreak havoc" on relationships between schools and their employees.

"Already-stretched school district officials lack the time, resources, and expertise necessary to discern between speech and 'petitions,' leading to even more hesitance about disciplining employees in order to avoid the possibility of constitutional claims alleging retaliation," the NSBA brief says.

Schnapper, meanwhile, told the justices that the First Amendment's free speech and petition clauses serve somewhat different purposes.

"The petition clause was not adopted, like the free speech clause, to foster a vigorous public debate," he said. "The purpose of the petition clause ... is to enable an individual to seek relief for a wrong. ... It's about people's ability to seek redress."

Daniel R. Ortiz, the lawyer for the borough of Duryea, said that if the court accepted the argument for separating petition-clause cases from the public-concerns test laid out in the Connick case, then it would "constitutionalize, under the petition clause, large parts of the law of public employee discipline, and thereby grant to public employees a broad constitutional employment right that private employees do not enjoy."

The borough was supported by the Obama administration, which argued that there was a critical difference between petitioning the government as a sovereign power and petitioning the government as an employer.

"In that latter situation, Connick has been critical in providing a bulwark against allowing run-of-the-mill employment disputes from becoming constitutional cases in federal court," said Joseph R. Palmore, an assistant to the U.S. solicitor general.

Justice Elena Kagan asked Palmore a hypothetical question that called to mind recent events in Wisconsin.

"Suppose a state legislature passes a law depriving all state employees of collective-bargaining rights, and a state employee files a lawsuit saying that this law violates the state constitution, and the state employee is thereupon fired. Is that a matter of public concern or not?" Kagan said.

Palmore said the subject of the employee's speech, that the legislature's action was illegal, would suggest that it was about a matter of public concern.

What about a class action alleging systemic discrimination in the public workplace? Kagan asked.

That would be a matter of public concern, Palmore said, similar to the Supreme Court's 1979 decision in Givhan v. Western Line Consolidated School District, which upheld speech protections for a teacher who complained privately to her principal about problems with the district's desegregation plan.

While it was far from clear that Kagan or the court's other more liberal members were likely to side with the police chief, the court's conservatives seemed to be in the employer's corner.

"All of our cases have equated the petition clause reach with that of the First Amendment [speech clause], and our cases under the First Amendment have made clear that we don't want to constitutionalize the employee grievance procedures," Chief Justice John G. Roberts Jr. told Schnapper.

Justice Antonin Scalia said he was unconvinced that filing a lawsuit for retaliation even came in as a form of petitioning the government under the First Amendment.

"I find it difficult to believe that lawsuits are covered by the petition clause when it is very clear that the Congress can prevent all lawsuits against the federal government by simply refusing to waive sovereign immunity," Scalia said.

Schnapper said the petition clause could be read to cover creations of the government, from law courts to arbitration proceedings.

"Back at the time of Magna Carta, petitions only went to the king," Schnapper said. "Over time, the British government and ultimately the American government developed other mechanisms that were simply more efficient."

A decision in the case is expected by late June.

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